Five years, still fighting —

File-sharer will take RIAA case to Supreme Court

After losing three trials and one appeal, Jammie Thomas-Rasset still won't quit.

Jammie Thomas-Rasset and her legal team are headed—they hope—for the Supreme Court.

Thomas-Rasset, a young Minnesota mom, was the first US file-sharer to take her RIAA-initiated lawsuit all the way to a trial and a verdict back in 2007. Five years, three trials, and one appeal later, she owes $222,000 to the recording industry for sharing songs on the Kazaa file-sharing network, but she doesn't plan to quit fighting.

I contacted Thomas-Rasset's lawyer, K.A.D. "Kiwi" Camara about today's appellate ruling restoring the judgment from Thomas-Rasset's first trial. Would Thomas-Rasset press on to the only legal avenue still open to her?

"Because even the reduced amount of damages that we won is punitive, the court of appeals erred by failing to apply the Supreme Court's punitive damages cases," he told me by e-mail. "We will seek certiorari from the Supreme Court to correct that error."

Thomas-Rasset will follow Joel Tenenbaum, the second US resident to take his file-sharing case that far. Tenenbaum—who reached the Supreme Court first because he had only one jury trial instead of three—tried to convince the justices that they should take his case to stop the music label plan to create, in his lawyer's words, "an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future." The Supremes showed no interest, denying Tenenbaum's petition back in May.

Even if the SCOTUS agreed to hear her case, isn't it it's more likely that they would just make a ruling on one small obscure aspect of the case that doesn't pertain to file-sharing in general?

Most likely, yes. Generally SCOTUS tries to limit the holdings where appropriate to avoid unintended consequences. It does seem to me that the punitive damages are beyond the constitutionally accepted range that SCOTUS has previously laid out.

Hat-tip. This is unbelievable, and has been for some time. Wasn't she selling thongs at one time to raise money for a legal defense fund? And here's one to warp your perspective: this case has been dragging on since before the first iPhone.

I can see the problem here and why the Supreme court needs to finally rule here - the damages which have ranged from $2,000 per song up to $80,000 per song. Such a range means that obviously there is a disconnect between what should be set as 'constitutionally acceptable', and what is coming out of the lower courts.

Both of these defendents are completely unsympathetic, but anything that keeps these ridiculuous penalties in the news is bad for the companies in the long run, I think. It would be different if these publicized cases managed to dissuade file-sharing activity but it still seems to be ubiquitous, especially among the younger generation, despite the obvious risk of a judgment permanently ruining your economic life.

I can see the problem here and why the Supreme court needs to finally rule here - the damages which have ranged from $2,000 per song up to $80,000 per song. Such a range means that obviously there is a disconnect between what should be set as 'constitutionally acceptable', and what is coming out of the lower courts.

The only way I can see SCOTUS taking up her case is if she was arguing about the damages being owed and nothing dealing with "I did/I didn't share those songs". If they touch on anything else other than the damages, like most, I would be very surprised if they even glance at the filing.

I doubt the Supreme Court will take it up. Being de facto punitive isn't the same as actually being the class of damages the law calls punitive. If Congress wanted to make the awards in multi-work infringement cases be more easily reduced, it could've set limits for that purpose when it updated the statutory range in 1999, or it could've eliminated the statutory damage option altogether. But the record shows Congress wanted to retain the statutory option and increase its penalties as a deterrent, expressly in response to widespread online infringement. Perhaps I should wait to see what Camara comes up with, but I can't imagine he can say anything persuasive enough to get a foot in the door.

She quite literally has nothing to lose. The current penalty on her destroys any potential in her life to ever be anything more then someone else's slave.

I had a employee effected by that sort of judgement. I mailed 1/2 of her check to the "justice department" and gave her the other half.

I worked with others who had this to, although they were not my employees. This takes a hard life, and removes any hope.

-- FBlue

Word - if she ends up losing with no other avenue, she'll be paying this off 'til she's dead, and she'll still be in debt. Meanwhile, corporations do dirty deeds all day and all night. When they get busted, they get a little slap on the wrist that they call the 'cost of doing business' and keep right on doing the same (see the Bank of America overdraft class-action settlement - $400 mil settlement when they're estimated to have made in the neighborhood of $3 bil pulling that shadiness.) Going right back to that isn't sleazy and wrong, it's increasing value for the shareholders!

Makes debtor's prison seem almost reasonable, doesn't it?

I doubt the SCOTUS takes this. If they do, it won't take on what are really the issues that make this case taste so slimy - perfect illustration that you would be better off shoplifting. On the one hand, you're not really even hurting the behemoth corporations when you use p2p software to acquire music (studies back that up.) On the other, you may very well be hurting a small business (where I live, chain record stores are long dead, but there are two independents within 10 blocks of me.) If we're talking shoplifting from one of those, which is doing less harm? I know of what I speak - I used to work for a chain store that was across the street from the current location of one of the independents. Sales were bad, so they cut labor. Cutting labor means higher theft, which means less revenue, cut more labor, have more theft, ad infinitum. Part of the morning routine was picking out the security tags that had been cut off by thieves. Corporate figured those at $13 per. At its worst, the one single store was losing $2000 a day to shoplifting. Eventually, when the chain was bought out by another, they closed that store, putting 15-ish people out of jobs. Cry me a river that Lars Ulrich will have to wait a month before he can afford his solid gold swimming pool all because of filthy thieves like Jammie Thomas.

Not that people couldn't just buy music (or use loop-back recording on older OSes - I can't recall if I ever got that working or not on Win 7), but we live in reality here - this shit will happen, but making Jammie Thomas an indentured servant to a multi-billion dollar industry isn't the answer.

She is not being accused of downloading the songs, she is being accused of distributing the songs to other people.

Since nobody knows how many other people downloaded the songs off her PC, and certainly not how many of those people would have purchased the songs if they weren't available on P2P networks, it's pretty hard to figure out what the damages should be. But it is certainly more than $0.99 per song.

I think this deserves a Supreme Court decision, and attention from Congress. It's time for those guys to pay attention to all the crazy shit going on in the Intellectual Property industry, then get off their fat lazy asses and write a few clear and sensible bills to clean things up.

She is not being accused of downloading the songs, she is being accused of distributing the songs to other people.

Since nobody knows how many other people downloaded the songs off her PC, and certainly not how many of those people would have purchased the songs if they weren't available on P2P networks, it's pretty hard to figure out what the damages should be. But it is certainly more than $0.99 per song.

I think this deserves a Supreme Court decision, and attention from Congress. It's time for those guys to pay attention to all the crazy shit going on in the Intellectual Property industry, then get off their fat lazy asses and write a few clear and sensible bills to clean things up.

While I agree with your logic it is difficult ffor me to accept that if they are unable to prove how many people a file is shared with that they are allowed to pick some arbitary value. A single universal fee needs to be decided for the distribution of copyrighted material. I just have a hard time with making somebody pay some arbitary number, because the actual losses were not calculated, most file sharing programs idicate how many times a whole file was shared. Unless this information was lost, then I would argue, they are out of luck and the courts should decided what that share ratio is.

I have no problem forcing this convincted file-sharer pay for each copy they distributed to somebody else, but only for those copies they share, not a penny more.

Aiming for these absurd judgments by the recording industry is silly. They will never collect. Defendant can either declare bankruptcy or move to a strong rights state like Texas and pretend this never happened. Better to aim for a few thousand in damages where there is a good possibility of collecting.

Then RIAA should be required to prove how many people the songs were distributed to. Otherwise, these are just arbitrary (i.e. pulled from their ass) numbers that should not be accepted in the court.

Civil court != criminal court

In civil proceedings, the claims by the filer are of equal weight and of equal burden of proof as those claims by the defendant. It is up to the court to weight both positions on an equal basis and to decide whose arguments are more believable.

Hence in civil proceedings, the person who files first has already automatically won by 50%...

Even if the SCOTUS agreed to hear her case, isn't it it's more likely that they would just make a ruling on one small obscure aspect of the case that doesn't pertain to file-sharing in general?

They're not appealing for it to be heard (which the supreme court doesn't hear the actual criminal case in the first place, but only challenges to the application of law), but they're instead asking SCOTUS to simply note that the appelate court misinterpreted the law or ignored SCOTUS own rulings in other case history, and will send the verdict back for correction. Essentialyl, they're asking SCOTUS to confirm existing appelate law does apply and was not used to overturn the ruling and make them retry. The case itself won;t land on the supreme court to argue over what is and is not legitimate punishment.

Even if the SCOTUS agreed to hear her case, isn't it it's more likely that they would just make a ruling on one small obscure aspect of the case that doesn't pertain to file-sharing in general?

I don't know about "small obscure aspect," but the meat of the case would have nothing to do with file sharing, I'd guess. At this point it isn't so much about the verdict itself (many will disagree, but it seems the plaintiffs met their burden in this case) but rather the amount of the damages awarded.

The court, and the case, needn't necessarily touch filesharing to address that issue.

Just moved your comment over from the previous article. I don't think the Justices will give her any more attention than they gave Tenenbaum, but I figured her lawyers would try anyhow.

Furthermore, this case is on firm legal ground from the plaintiff's perspective. There is no dispute that she is guilty of infringement. The only question relates to the extent of the damages, and that's not worth the court's time.

Even if the SCOTUS agreed to hear her case, isn't it it's more likely that they would just make a ruling on one small obscure aspect of the case that doesn't pertain to file-sharing in general?

They're not appealing for it to be heard (which the supreme court doesn't hear the actual criminal case in the first place, but only challenges to the application of law), but they're instead asking SCOTUS to simply note that the appelate court misinterpreted the law or ignored SCOTUS own rulings in other case history, and will send the verdict back for correction. Essentialyl, they're asking SCOTUS to confirm existing appelate law does apply and was not used to overturn the ruling and make them retry. The case itself won;t land on the supreme court to argue over what is and is not legitimate punishment.

If the point is not to argue the punishment (degree/severity), then... what is the point?

Its been fun watching her and JT get smacked down repeatedly. Completely unsympathetic individuals who committed criminal acts to cover up their claims, and blamed anyone they could but themselves for thier actions.

As to those worried about thier supposed lives of servitude: If they really cared about that, given that both already know they are guilty, perhaps they should just take one of the several settlement offers they've had, which have ranged from $5-10k last I read about it. Its not like the labels have not been completely reasonable in an attempt to make this go away.

I wouldn't expect the Supreme Court to take up the issue. Though the case the Thomas-Rasset and Tenenbaum courts relied upon dates from 1919. St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, the principle that Congress has the power to set a range of statutory damages without interference from the courts is not controversial. While the damages in the Thomas-Rasset and Tenenbaum cases were substantial, they were at the lower end of the scale. This is hardly outrageous from the Court's perspective. The precedent that overturns large awards for small injuries is confined to punitive damages. And while you think the award against Thomas-Rasset is punitive, it's not. Punitive damages are above and beyond the generic damages award.

I can see the problem here and why the Supreme court needs to finally rule here - the damages which have ranged from $2,000 per song up to $80,000 per song. Such a range means that obviously there is a disconnect between what should be set as 'constitutionally acceptable', and what is coming out of the lower courts.

How much of that does "the artist" see? Or is this just a cash grab by the suits?

I doubt the Supreme Court will take it up. Being de facto punitive isn't the same as actually being the class of damages the law calls punitive. If Congress wanted to make the awards in multi-work infringement cases be more easily reduced, it could've set limits for that purpose when it updated the statutory range in 1999, or it could've eliminated the statutory damage option altogether. But the record shows Congress wanted to retain the statutory option and increase its penalties as a deterrent, expressly in response to widespread online infringement. Perhaps I should wait to see what Camara comes up with, but I can't imagine he can say anything persuasive enough to get a foot in the door.

The problem with your logic is that in 1999 when Congress was updating the statutory range, online infringement was not near as known or available as it was in 2007 when the case was first brought against Thomas (later Thomas-Rassett), and certainly not as today. You're playing into the whole hindsight is 20/20 bit, but expecting the results that came about to have been portent of the technology that developed later. As it stands, the laws are already outdated in reference to statutory limits and uses.

In regards to the whole "this was civil court and therefore the bar required for proof of guilt is lowered", this is true. However, this is not a reasonable justification to not put any effort at all into your case. If the RIAA really wants us to believe that 2,000 to 80,000 people were downloading off each Thomas-Rassett's seeds of their copyrighted music (the rough equivalent of the $0.99 song price tag), then they need to at least so something to make that a plausible case. If they're not even going to be bothered to so much as put a tiny amount of effort into an educated estimate on the number of people that downloaded from her,--thereby bypassing their distribution rights--then they shouldn't be allowed the upper end of the statutory damages ranges that were intended originally in use against infringers that were making monetary profit from the infringement (Thomas-Rassett was not).

I refuse to accept the whole "it's civil court, so it's fair" bit just because that's the way it's been done and the way the laws allow it to be done. Laws can and should change, and courts are supposed to be smart and autonomous enough to where they can avoid undue exploitation of a party in cases that deal with technology that has not been ruled upon before.

I doubt the Supreme Court will take it up. Being de facto punitive isn't the same as actually being the class of damages the law calls punitive. If Congress wanted to make the awards in multi-work infringement cases be more easily reduced, it could've set limits for that purpose when it updated the statutory range in 1999, or it could've eliminated the statutory damage option altogether. But the record shows Congress wanted to retain the statutory option and increase its penalties as a deterrent, expressly in response to widespread online infringement. Perhaps I should wait to see what Camara comes up with, but I can't imagine he can say anything persuasive enough to get a foot in the door.

The problem with your logic is that in 1999 when Congress was updating the statutory range, online infringement was not near as known or available as it was in 2007 when the case was first brought against Thomas (later Thomas-Rassett), and certainly not as today. You're playing into the whole hindsight is 20/20 bit, but expecting the results that came about to have been portent of the technology that developed later. As it stands, the laws are already outdated in reference to statutory limits and uses.

Wait, in 1999 people did not know about Napster? Even though it was kinda big news, especially in the circles that were concerned with the issues?

The problem is the copyright law, and Congress is nowhere near fixing that.

Very little chance of SCOTUS hearing this case, and even if they did, and if they ruled in JTR's favor, it would be structured very narrowly and not be much use in any other case.

Record companies absolutely need to prove some financial damages. How many people downloaded from this person? How many of those are actually lost sales? I don't care that it's hard to prove. You want monetary damages, you need to have evidence to back it up. Record companies are gigantic and spend lots on their legal departments, buying laws, and hunting downloaders. Juries clearly have no idea, picking numbers out of a hat that vary 50x and judges striking them down. The possibility of paying $150,000 per song is beyond ludicrous and needs to end.

in 1999 when Congress was updating the statutory range, online infringement was not near as known or available

When I said "the record shows" that Congress was aware of online infringement, I was referring to the Act's legislative history. This is from a House report at the time:

Quote:

By the turn of the century the Internet is projected to have more than 200 million users, and the development of new technology will create additional incentive for copyright thieves to steal protected works. The advent of digital video discs, for example, will enable individuals to store far more material than on conventional discs and, at the same time, produce perfect secondhand copies [...] Many computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct. Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action. In light of this disturbing trend, it is manifest that Congress respond appropriately with updated penalties to dissuade such conduct. H.R. 1761 increases copyright penalties to have a significant deterrent effect on copyright infringement.

And this is from when the bill was being introduced in the House (it passed the Senate without amendment or comment):

Quote:

[...]it provides an inflation adjustment for copyright statutory damages. It has been well over a decade since we last adjusted statutory damages for inflation. Our purpose must be to provide meaningful disincentives for infringement, and to accomplish that, the cost of infringement must substantially exceed the cost of the compliance so that those who use or distribute intellectual property have incentive to comply with the law. [...] The increasing threat of intellectual property theft both in the on-line and off-line world will thus be fought with all available weapons.

So I think it's safe to say that Congress was aware and did have online infringement in mind when it increased the statutory damage award range.